In-House Focus: Steer Clear of Career-Limiting Moves

Originally published by Laura P. Haley.

One bright spring day in 2007, I took my former client out to lunch to pitch my new firm. By the end of lunch, my client hired me as his new in-house litigator. I had never considered a corporate counsel job before and had no idea what to expect. This post, and those I’ll write over the next few weeks, will discuss what I learned, both from an inside and outside counsel perspective.

Winning Your Case While Avoiding a CLM

Litigators can be odd members of in-house legal teams, particularly if they come straight out of a litigation-intensive firm. My former firm was probably typical for a litigation boutique: a small collection of very passionate, competitive law nerds. So my entry into the quiet, corporate legal structure presented me with frequent opportunities for career-limiting moves, affectionately known as CLMs.

One of my early CLMs was shushing the CEO. At the time, we were on a conference call with our insurers, discussing litigation against a group of plaintiffs with a $100 million damage model. Within two months of the call, we tried the case and zeroed out the plaintiffs. While it was a huge legal victory, I learned it was equally important not to give the CEO “the hand.” Balancing passionate representation and patience with corporate decision-makers is critical for in-house litigators.

Same Client, Completely Different Job

When I joined the in-house legal department, I had been representing the company in a variety of cases for five years. I knew the heads of the legal department and most of the executives in the c-suite. I represented them in depositions, read their emails in discovery, and spent days in mediation rooms with them. I had a level of comfort stemming from my outside counsel relationship with them, which is completely different from the relationship I would have as an employee of the company. That transition, moving from outside autonomy to inside employment, was the biggest change, and one I admit I was the least prepared for.

As litigators consider a move between these positions, outside to inside counsel, they would benefit from spending time with those who have made the move before them, to understand the unforeseen challenges and paradoxes that await. Many attorneys assume that the inside-counsel gig is easier: less time spent at the office; no time spent accounting for the hours of the day in six-minute increments. But the in-house litigator job is not easier. It requires different skills, in addition to the skills required as a litigator, and involves a far more complex relationship with your client and its representatives.

Fiduciary in the Boardroom

From the moment you walk in the door, you are at once the trusted adviser on litigation strategies affecting contracts and equipment worth many millions of dollars and hundreds of jobs. And, at most, you are a mid-level management employee. You will explain these strategies and their pros and cons to the company leaders, board members, and decision-makers many levels above your pay grade. If you are a woman, understand it will likely be in a room full of men, most of whom will welcome you and your ideas, while others may see you as a curiosity, an annoyance, or a threat. You will have to address the knee-jerk reaction that executives may have to lawyers, judges, and litigation, addressing the same prejudices you elicit in jury selection, but with people who will review your performance, salary, and bonuses annually. The complexity of the relationship cannot be overstated. While the risk of a CLM is ever-present, you cannot allow these considerations to compromise your role as a fiduciary. Outside counsel rarely attend these meetings, and yet, it is here that most decisions regarding litigation strategy are made. As a result, in-house counsel, and litigators in particular, must always have a foot firmly planted in two worlds: that of autonomy and power in the courtroom when representing your client, and hierarchy and deference in the boardroom when advising your client’s representatives.  Balance is essential to maintaining your footing in these very different worlds, winning your case, and avoiding CLMs.

How Can You Help?

As outside counsel, we can assist our in-house litigation counterparts by acting as a resource. Because in-house litigators will advise executives on litigation strategy, outside counsel play an important role by advising on all aspects of the litigation, the short- and long-term goals, the myriad of potential outcomes, the likelihood of success or failure, the expense of each, and the consequences within the broader context of the industry, future litigation, and the client’s business relationships.

Sometimes, outside counsel can also act as a sounding board, allowing in-house attorneys the opportunity to discuss executive decision-making and its effect on litigation strategy. These disclosures are not speaking out of turn. They are an important communication, providing insight to outside counsel of the forces impacting the client’s risk and litigation tolerance, of which they may have no idea.

All of these privileged communications improve and elevate the quality of the client’s representation and provide an opportunity to connect with and learn from our inside and outside colleagues. And as an added benefit, these improved communications may prevent the occurrence, or at least the frequency, of CLMs, for both inside and outside counsel.

Image courtesy of Flickr by Steven Depolo.

The post In-House Focus: Steer Clear of Career-Limiting Moves appeared first on Texas Appellate Law.

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